COURT OF APPEALS DECISION
DATED AND RELEASED SEPTEMBER 26, 1995
STATE OF WISCONSIN
IN COURT OF APPEALS
CADOTT EDUCATION ASSOCIATION
WISCONSIN EMPLOYMENT RELATIONS COMMISSION,
Decision No. 27775-E
APPEAL from an order of the circuit court for Chippewa County: RODERICK A.
Before Cane, P.J., LaRocque and Myse, JJ.
CANE, PJ. Cadott Education Association appeals a circuit court order affirming a
Employment Relations Commission decision dismissing the association's prohibited practice
complaint. The association's complaint alleged that the School District of Cadott Community
failed to bargain with employee representatives before enacting a policy whereby employees
were on sick leave the day before and after a paid holiday were not paid for the holiday and
instead were charged additional sick leave for the absence on the holiday. On appeal, the
association argues: (1) the contractually-guaranteed paid holidays constitute a term or
of employment and are therefore a mandatory subject of bargaining; (2) the district did not
about eligibility for holiday pay; and (3) the district committed a prohibited practice when it
adopted and implemented a policy of denying holiday pay to those employees on sick leave
day before and the day after a paid holiday.
We agree with the association and WERC that eligibility for holiday pay is a
of bargaining. However, we conclude it was reasonable for WERC to conclude that the
agreement addresses the employees' holiday pay rights and that the district has no further
obligation to bargain over the issue of eligibility for holiday pay. Therefore, we affirm the
court order affirming WERC's decision dismissing the association's prohibited practice
The facts that led to the filing of the prohibited practice complaint are undisputed.
employee Andy Edgell was on medical leave from November 9 to December 11, 1992.
Edgell returned to work, he examined his accrued sick leave allotment and discovered that
and one-half hours had been deducted for Thanksgiving Day, a paid holiday under the
1992-94 collective bargaining agreement. Edgell reported this deduction to the chief
of the association's bargaining unit, of which Edgell is a member. The association filed a
grievance with the district, asking that Edgell be made whole by returning the seven and
hours to his sick leave allotment and that the district refrain in the future from deducting sick
for paid holidays.
The district rejected the association's request, stating that the practice of not giving
to employees absent the day before and after a paid holiday had been used in the past and did
violate the parties' contract. The board of education also denied the association's grievance.
response, the association requested arbitration of the grievance, as provided for in the
agreement. The parties selected an arbitrator, but no arbitration date was agreed upon. The
association subsequently filed a prohibited practice complaint with WERC on behalf of
four other bargaining unit members who had incurred the disputed sick leave deduction.
complaint alleged that the district interfered with, and coerced municipal employees in the
of their rights in Sec. 111.70(2), STATS. (1)
The complaint further alleged that the district
violated Sec. 111.70(3)(a) 1 and 4, STATS., (2) when it denied some employees holiday pay for
paid holidays and instead deducted additional sick leave for these employees without first
bargaining with the association.
WERC's hearing examiner issued findings of fact, conclusions of law and an order
the association's prohibited practice complaint. Cadott Education Ass'n, Dec. No. 27775-B
(Schiavoni, 1/94). The association appealed that portion of the hearing examiner's order
dismissing the prohibited practice complaint. WERC adopted the majority of the hearing
examiner's findings of fact and replaced several findings with two of its own, including the
finding that the parties' 1992-94 contract addressed the subject of holiday pay. Cadott Educ.
Assn, Dec. No. 27775-C (WERC, 6/94) at 2-3. In its conclusions of law, WERC
Because the subject of holiday pay is addressed in the parties'
1992-1994 contract, the parties
to the 1992-1994 contract have no statutory obligation to bargain with each other over the
of holiday pay during the term of the 1992-1994 contract. Thus, the Respondent District's
conduct is not violative of Secs. 111.70(3)(a) 4 or 1, STATS.
Id. at 4. Accordingly, WERC affirmed the examiner's order dismissing the prohibited
The association petitioned the circuit court for judicial review of the administrative
circuit court affirmed WERC's decision. The association now appeals that portion of
decision dismissing its prohibited practice complaint.
STANDARD OF REVIEW
We review WERC's decision, not the circuit court's. Jefferson County v.
WERC, 187 Wis.2d
647, 651, 523 N.W.2d 172, 174 (Ct. App. 1994). In this case, WERC issued both findings
fact and conclusions of law. This court must uphold an administrative agency's findings of
if they are supported by relevant, credible and probative evidence upon which reasonable
could rely; we may not substitute our own judgment in evaluating weight or credibility of
evidence. Larson v. LIRC, 184 Wis.2d 378, 386 n.2, 516 N.W.2d 456, 459
n.2 (Ct. App.
1994). This court shall, however, set aside agency action or remand the case to the agency
finds that the agency's action depends on any finding of fact that is not supported by
evidence in the record. Section 227.57(6), Stats. "Substantial evidence" necessary to
administrative decision is such relevant evidence as a reasonable mind might accept as
to support a conclusion. City of La Crosse Police & Fire Comm'n v.
LIRC, 139 Wis.2d 740,
765, 407 N.W.2d 510, 520 (1987).
The general rule for review of conclusions of law is that reviewing courts are not
bound by the
agency's conclusions of law. West Bend Educ. Ass'n v. WERC, 121 Wis.2d 1,
11, 357 N.W.2d
534, 539 (1984). Our supreme court discussed the appropriate standards of review of an
legal conclusions and statutory interpretation in Jicha v. DILHR, 169 Wis.2d
284, 290-91, 495
N.W.2d 256, 258-9 (1992):
This court has generally applied three levels of deference to
conclusions of law and statutory
interpretation in agency decisions. First, if the administrative agency's experience,
competence, and specialized knowledge aid the agency in its interpretation and application of
statute, the agency determination is entitled to "great weight." The second level of review
provides that if the agency decision is "very nearly" one of first impression it is entitled to
weight" or "great bearing." The lowest level of review, the de novo standard, is applied
it is clear from the lack of agency precedent that the case is one of first impression for
the agency lacks special expertise or experience in determining the question presented.
in original; citations omitted.)
The association argues that WERC's decision is entitled to only due weight because the
represents "a sub silentio departure from its policy requiring that waivers be shown by
that is clear and unmistakable." WERC argues its decision is entitled to great weight. We
with the association that WERC's decision marks such a departure from previous policy that
deserves less deference. For this reason, and because this case does not present an issue of
impression or nearly first impression, we conclude that the great weight is
appropriate. Thus, our review of WERC's legal conclusions is limited to whether the
have a rational basis, whether they are reasonable. Jefferson County, 187
Wis.2d at 653, 523
N.W.2d at 174-75.
THE PROHIBITED PRACTICE COMPLAINT
The association argues that the issue of eligibility for holiday pay is a mandatory
bargaining. Section 111.70(3)(a)4, STATS., imposes on employers a duty to bargain
as defined in Sec. 111.70(l)(a), STATS., over hours, wages and conditions of employment,
declares the failure to do so a prohibited labor practice. Addressing this issue, WERC in its
decision concluded that "[b]ecause eligibility for holiday pay so clearly deals primarily with
compensation and benefits to bargaining unit members, that is, wages and conditions of
employment," it is a mandatory subject of bargaining. Cadott Educ. Ass'n,
Dec. No. 27775-C
at 7. We agree. The more difficult issue in this case is whether the parties' agreement
employees' rights to holiday pay.
WERC's decision included the finding of fact that the parties' contract addresses the
holiday pay. This finding is, in some respects, a finding of fact. WERC found that the
includes the following provision: "Paid holidays in the school calendar will be Memorial
Thanksgiving and Labor Day." This court must uphold this finding because it is supported
substantial evidence in the record. Larson, 184 Wis.2d at 386 n.2, 516 N.W.2d
at 459 n.2. The
legal significance of this provision, however, is reviewed as a conclusion of law.
WERC concluded that because the issue of holiday pay eligibility was addressed in the
1992-94 agreement, the district had no duty to bargain with the association and contractual
applied. Cadott Educ. Ass'n, Dec. No. 27775-C at 8. In its analysis, WERC
municipal employer's duty to bargain during the term of a contract extends to all mandatory
subjects of bargaining except those which are covered by the contract or as to which the
waived its right to bargain through bargaining history or specific contract language." Id. at
(emphasis removed). Therefore, if the parties' agreement addresses the issue of holiday pay,
is no violation of the duty to bargain imposed by Sec. 111.70(3)(a)4, STATS. The
argues that while the agreement explicitly lists the paid holidays, it fails to make any
eligibility for holiday pay or to a policy that might deny holiday pay for those employees
the days before and after a paid holiday.
WERC rejected this argument, concluding that although the parties did not specifically
the eligibility issue, the parties had a holiday pay provision that, when read in conjunction
the rest of the contract, defines employees' holiday pay rights. Cadott Educ.
Assn, Dec. No.
27775-C at 14. WERC cited with approval a 1978 WERC decision that addressed whether
employer was obligated to bargain over an employe's right to accrued vacation benefits upon
termination. In Janesville Schools, Dec. No. 15590-A (Davis, 1/78), aff'd by
operation of law
(WERC, 2/78), WERC's hearing examiner held:
Although the record clearly indicates that the parties have never
[terminating an employees vacation rights] they have bargained a vacation clause which, in
conjunction with other possibly relevant contractual provisions, completely defines an
rights or lack thereof to vacation benefits. Although the bargaining agreement does not
focus upon a terminating employe's right to accrued vacation benefits or a myriad of other
potential vacation issues which could arise during the term of the agreement, its terms and
provisions are nonetheless capable of resolving all such issues. To conclude that the
agreement is silent on the subject because it does not explicitly focus upon said issue would
ignore the fact that a contract cannot possibly deal specifically with all the potential problems
which are generated in an employer-employe relationship.
Id. at 6.
Applying Janesville, WERC in this case concluded that the existing
contract between the
association and the district defined employees' rights to holiday pay:
Although the parties did not specifically discuss the eligibility
issue at the heart of the instant
dispute, they do have a holiday pay provision. That provision, when read in conjunction
rest of the contract, defines employes' holiday pay rights. As was true in
conclusion ends the inquiry we need to make to resolve the duty to bargain issue. The
have bargained on holiday pay and are not obligated to bargain further on the issue. The
of the parties' rights under their bargain need not be defined here and are appropriately left
grievance arbitration process.
Cadott Educ. Ass'n, Dec. No. 27775-C at 14.
The association does not disagree that the facts in Janesville are similar to
the facts of its case.
However, the association argues that Janesville was wrongly decided and that
should not be permitted to compound the error by adopting the Janesville
association argues that instead of adopting Janesville, WERC should have looked for
from other decisions regarding waiver, such as City of Appleton, Dec. No.
In City of Appleton, the parties' contract provided that a police officer
who reaches retirement age
may have year-to-year recertification until the age of sixty-five, at which time the officer
retire from the police force. Id. at 4. WERC concluded that the city committed a prohibited
practice when it imposed on police officers the cost of proving physical fitness for
to active employment without first bargaining with the policemen's association. Id. at 1-2.
WERC noted that the cost could not be imposed because the Union "by the contractual
[did not] clearly and unmistakably agree that the employer could impose such costs without
bargaining." Id. at 5.
Employing this analysis, the association argues that WERC should have examined the
determine whether the issue of sick leave substitution (in other words, eligibility for holiday
was 'clearly and unmistakably' covered by the contract. This argument is misplaced
WERC did examine the contract and concluded that eligibility for holiday pay is part of the
holiday pay section that is clearly and unmistakably addressed in the parties' agreement.
Educ. Ass'n, Dec. No. 27775-C at 14.
The scope of our review of WERC's decision is limited to whether conclusion has a
whether it is reasonable. Jefferson County, 187 Wis.2d at 653, 523 N.W.2d at
conclude it is reasonable, for the reasons articulated in Janesville, for WERC to conclude
though the agreement does not explicitly focus on an employe's eligibility for holiday
the agreement is capable of resolving issues surrounding holiday pay. We agree with the
in Janesville: "To conclude that the bargaining agreement is silent on the
subject because it does
not explicitly focus upon an said issue would be to ignore the fact that a contract cannot
deal specifically with all the potential problems which are generated in an employer-employe
relationship." Janesville, Dec. No. 15590-A at 6.
Here, it must be kept in mind that the association's complaint alleges district engaged
prohibited practice because it failed to bargain on eligibility for holiday pay; this is not an
for violation of the parties' contract. Because WERC reasonably concluded that the contract
addresses holiday pay rights, the district has not failed to bargain on this issue and has
not engaged in that prohibited practice. In essence, WERC concluded that the association is
seeking to enforce what it believes is an unconditional right to holiday pay under the terms of
contract. Whether the district violated the agreement by denying some employees holiday
an issue regarding the scope of the parties' rights under the contract, an issue appropriately
to the grievance process. (4)
Because it was not unreasonable for WERC to conclude that the agreement addresses
holiday pay rights, we affirm the circuit court's order affirming WERC's dismissal of the
association's prohibited practice complaint.
By the Court. Order affirmed.
Recommended for publication in the official reports.
1. Section 111.70(2), STATS., provides in part:
Rights of municipal Employees. Municipal employees shall have
the right of self-organization
and the right to form, join or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in lawful, concerted activities for the
of collective bargaining or other mutual aid or protection . . .
2. Prohibited practices and their prevention. (a) it is
a prohibited practice for a municipal
employer individually or in concert with others:
(1) To interfere with, restrain or coerce municipal employes in the exercise of
guaranteed in sub. (2).
. . .
(4) To refuse to bargain collectively with a representative of
a majority of its employes in an
appropriate collective bargaining unit.
3. The association also cites Sheboygan
County, Dec. No. 27692-B (WERC, 3/95); City Of
Kenosha, Dec. No. 16392-A (Yaeger, 12/78), aff'd by operation of law, Dec. No.
(WERC, 1979); and State of Wisconsin, Dec. No. 13017-D (WERC, 1977).
4. The Association argues that WERC's decision
referring the association to the grievance
process is inconsistent with part of its decision affirming the denial of the district's motion to
to the grievance process (that portion of WERC's decision was not appealed by either party).
disagree. WERC determined it was appropriate to take jurisdiction over the prohibited
complaint and to decide it on its merits, without deferring to the grievance process. Once
the merits of the prohibited practice complaint were determined, it was
appropriate to refer further disputes to the grievance process where the issue will be whether
district violated the parties' agreement when it denied employees holiday pay in spite of
language providing that employees are entitled to holiday pay.